November 2013

November 2013 Cover

Effectively representing a client during the plea negotiation process requires more time, skill, and effort than many lawyers give it.


Articles in this Issue

  1. A Report on Behalf of the ABA Task Force on the Reform Of Federal Sentencing For Economic Crimes

    In April 2013, the Criminal Justice Section of the American Bar Association assembled a task force to study and evaluate the reforms needed in the sentencing of federal economic crimes. The mission of the task force was not only to identify the areas of weakness in the existing Federal Sentencing Guidelines, but also to draft and propose a better guideline to remedy those weaknesses.

    James E. Felman

  2. Affiliate News

    Affiliate News Gerald Lippert Affiliate News November 2013 13 Defense Community Mourns Death of Dan Schoen Dan Schoen, the executive director of the Colorado Criminal Defense Bar (CCDB), a passionate advocate of criminal justice efforts in Colorado, and death penalty opponent, died on Oct. 15,

    Gerald Lippert

  3. Book Review: Child Abuse and Its Mimics in Skin and Bone

    Child Abuse and Its Mimics in Skin and Bone is a book that outlines bone and skin conditions that mimic and could be mistaken for actual physical abuse in children. The book was written by medical doctors with collective expertise in forensic radiology, pediatrics, and dermatology. Its stated design is for anyone who is confronted with the task of sorting out abuse from nonabuse in child injury cases, but the technical language of the book does make some of its content a real challenge for nonclinicians. This book is not designed as a quick read on the subject of defending child injury cases, but rather is more of a text reference that could be called upon as a resource when a specific skin or bone injury arises.

    Brandon Sanchez

  4. Book Review: Deal With the Devil: The FBI’s Secret 30-Year Relationship With a Mafia Killer

    As noted in a 2006 review of Triple Cross, his most recent book on counterterrorism, “Peter Lance is the last of a dying breed: an investigative reporter who is disciplined enough to devote half a decade in pursuit of the truth. A newsman cut from the same cloth as the legendary journalist I.F. ‘Izzy Stone.’ A gumshoe reporter who still pounds the pavement and relies heavily on public documents to present the facts.”

    Darryl Genis

  5. Book Review: Failed Evidence: Why Law Enforcement Resists Science

    As of this writing, the Innocence Project lists 311 exonerations. If that number is extrapolated to cases in which DNA was unavailable, the number of wrongful convictions becomes far greater. Yet — except in rare instances — law enforcement officials have alarmingly failed to identify this as a systemic problem. A curious position, given that when the wrong person is convicted the real criminal roams free, possibly committing more crimes. Why do these officials remain so resistant to the growing body of scientific evidence that exposes defective practices and can guide much-needed reforms?  

    Tony Bornstein

  6. Book Review: Federal Prison: A Comprehensive Survival Guide

    If you have clients who are about to begin a federal prison sentence, Jonathan Richards’ book, Federal Prison: A Comprehensive Survival Guide, could alleviate some of their anxiety by providing them and their families with useful information about what to expect from prison life. The book also is a valuable resource for attorneys who would like to be able to answer clients’ questions about prison or who simply want to know more about the conditions clients experience in prison.

    Ann L. Hester

  7. Book Review: Whiskey Island

    Many county officials in Greater Cleveland — including a judge or two — have been charged with such federal crimes as bribery and money laundering and violating the public trust; some have been convicted, some still await trial, a few await sentencing. Les Roberts fictionalizes these events in Whiskey Island, his 14th novel featuring private investigator Milan Jacovich (MY-lan YOCK-o-vich).

    Gail Gianasi Natale

  8. Challenging Cell Phone Searches Incident to Arrest

    Cell phones are now a staple of American life. A 2011 Pew Research Center Report found 83 percent of all American adults have a cell phone1 and a 2012 report found that 45 percent of those cell phones are Internet-connected “smartphones.”2 As cell phones find their way into more pockets and purses, they are becoming a crucial piece of evidence for law enforcement. Most cell phones store a person’s call history and allow its owner to send and receive text messages. Smartphones contain much more data than that, with applications, calendars, emails, photos and other forms of personal data stored on the phone itself. Increasingly, this information is also stored remotely “on the cloud” where it is accessible on multiple electronic devices. Thus, it is no surprise that a cell phone search is fast becoming a routine part of a criminal defendant’s arrest. Notably, many of these searches are occurring without a search warrant. Instead, officers and prosecutors rely on the search incident to arrest exception to the Fourth Amendment’s warrant requirement to search through a cell phone after arrest, regardless of whether there is likely to be evidence of the crime of arrest found on the phone.

    Hanni M. Fakhoury

  9. Echoes of War

    This article is the final part of a two-part series. Part One, which addressed the history of combat trauma and its ties to criminal behavior, appeared in the August 2013 issue of The Champion.

    Brockton Hunter and Ryan Else

  10. Effective Assistance of Counsel and Guilty Pleas — Seven Rules to Follow

    No criminal defense lawyer went to law school to become a cog in the criminal justice machine. Unfortunately, with an absolutely astonishingly high number of criminal cases being resolved by guilty plea, that is what many defense lawyers have become. 

    Vida B. Johnson

  11. From the President: Honoring Our Veterans Every Day

    Criminal defense lawyers should obtain training on the unique challenges that military veterans face in the criminal justice system.

    Jerry J. Cox

  12. Getting Scholarship Into Court Project

    The "Getting Scholarship Into Court Project" brings helpful law review articles and other writings to the attention of criminal defense attorneys.

    Getting Scholarship Into Court Project

  13. Indigent Defense

    Although budget cuts have crushed morale in public defender offices, attorneys in those offices continue their extraordinary efforts to defend the indigent accused. Peggy Cross-Goldberg and Gregory Geist exemplify these notable efforts.

    Donna Lee Elm

  14. Letter to the Editor: Native Americans and Racial Disparities in Sentencing

    As a long-time federal judge, I have seen many cases, mostly on appeal, of disparity of federal sentencing toward minorities, sometimes much harsher than on white offenders. The articles you published in July 2013 discussing the problems and possible solutions are timely and significant.

    Hon. Myron H. Bright

  15. Obtaining Evidence in the United States for Use by The Defense in a Foreign Criminal Proceeding

    This article explains how a criminal defendant in a foreign country may obtain documents or testimony from a person, business, or institution in the United States for use as evidence in a foreign proceeding. Title 28 U.S.C. § 1782 provides a simple and effective method for criminal defendants and those under investigation in foreign countries to request a U.S. federal court to assist the defendant in obtaining evidence from persons subject to the court’s jurisdiction. Under the statute, a U.S. federal court may issue a subpoena requiring a person in the United States to appear and give testimony at a deposition, or may issue a subpoena duces tecum requiring a person or entity within the United States to produce documents. Although a court can deny such a request for numerous reasons — for example, because the evidence sought is protected on the grounds of U.S. national security or is protected by a privilege, the statute can be a valuable aid in any criminal case. This article explains the mechanics of § 1782, points out how American lawyers can assist foreign counsel in using it, and identifies some pitfalls to avoid.

    Nancy Hollander and Walker Boyd

  16. Sharing the Best of America: NACDL Returns to Africa (Inside NACDL)

    NACDL received an invitation to provide training and technical assistance for public defenders in Liberia. NACDL will develop a curriculum and training manuals.

    Norman L. Reimer